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R v Wran (a pseudonym) (No 2)

R v Wran (a pseudonym) (No 2)

Case [2021] NSWDC 808 13 August 2021

Criminal Liability

Aggravated & Exemplary Damages

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Wran (a pseudonym) (No 2) [2021] NSWDC 808
Hearing dates: 29 July 2021
Date of orders: 13 August 2021
Decision date: 13 August 2021
Jurisdiction: Criminal
Before: P Taylor SC DCJ
Decision:
David Wran is:
(a)   On count 1, convicted of aggravated indecent assault of a child under 16 years.
(b)   On count 2, convicted of attempting to have sexual intercourse with a child aged between 10 to 14 years in circumstances of aggravation, namely that the victim was under his authority.
(c)   On count 3, convicted of attempting to have sexual intercourse with a child aged between 10 to 14 years in circumstances of aggravation, namely that the victim was under his authority.
(d)   On count 4, convicted of inciting a child aged between 10 and 16 to carry out a sexual act towards him, in circumstances of aggravation, namely that the child was under his authority.
2.   I impose an aggregate sentence of nine years and eight months’ imprisonment, with a non-parole period of seven years and three months, each to date from 27 July 2019. The period of imprisonment shall expire on 26 March 2029, and the offender shall be eligible for parole on 26 October 2026.

Catchwords:
SENTENCING — Aggravating factors — Abuse of position of trust or authority in relation to the victim
CRIME — Child sex offences — Attempted sexual intercourse with child >10 <16 — Indecent Assault – Incitement - Circumstances of aggravation
CRIME — Sexual offences — Indecent assault — Circumstances of aggravation

Legislation Cited:
CrimesAct1900, s 61HC, s 61M, s 66C, s 66DE, s 344A, s 578A
Crimes (High Risk Offenders) Act 2006, s 5I, s 9
Crimes (Sentencing Procedure) Act 1999, s 3A, s 5, s 21A, s 24A, s 53A, s 54A, s 54B, s 54D
Crimes (Sentencing Procedure)Amendment Act 2007, Sch 1, cl 10

Cases Cited:
BellvR [2019] NSWCCA 251
BT v R [2010] NSWCCA 267
Carlton v The Queen (2008) 189 A Crim R 332
Corby v R [2010] NSWCCA 146
DAC v R [2006] NSWCCA 265
Dawkins v R [2018] NSWCCA 278
Decision restricted [2017] NSWCCA 60
Franklin v R [2013] NSWCCA 122
Gregory John Walsh v R [2015] NSWCCA 83
Hartley v R [2020] NSWCCA 330
Hordern v R [2019] NSWCCA 138
Ibbotson (a pseudonym) v R [2020] NSWCCA 92
Jurd v R [2020] NSWCCA 91
Postiglione v The Queen (1997) HCA 26
R v BJW (2000) 112 A Crim R 1
R v BTW (2000) 112 A Crim R 1
R v Cage [2006] NSWCCA 304
R v Fisher (1989) 40 A Crim R 442
R v Gent [2005] NSWCCA 370; 162 A Crim R 29
R v KNL (2005) 154 A Crim R 268
R v LS; R v MH [2020] NSWCCA 148
R v MAK, R v MSK [2006] NSWCCA 381
R v PGM (2008) 187 A Crim R 152
R v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wran (a pseudonym) (No 2)

Details

AGLC: R v Wran (a pseudonym) (No 2) [2021] NSWDC 808
Case: [2021] NSWDC 808
Decision Date: 13 August 2021

CaseChat Overview and Summary

The case of R v Wran (a pseudonym) (No 2) involved the sentencing of David Wran, who had been convicted of multiple child sex offences. The court had to determine the appropriate sentence, taking into account the aggravating factors such as the abuse of a position of trust and authority over the victims. The case was heard in the Supreme Court of a certain Australian jurisdiction.

The legal issues before the court included whether the aggravating factors were applicable and how they should be weighed in determining the appropriate sentence. The court also had to consider the principles of sentencing for child sex offences, as well as the specific aggravating circumstances in this case.

The court found that the aggravating factors were indeed applicable, given Wran's position of trust and authority over the victims. In determining the appropriate sentence, the court considered the gravity of the offences, the impact on the victims, and the need for deterrence and denunciation. The court imposed an aggregate sentence of nine years and eight months’ imprisonment, with a non-parole period of seven years and three months. The sentence was intended to reflect the seriousness of the offences and the need to protect the community.

In summary, Wran was convicted on four counts related to child sex offences, and the court imposed a sentence of nine years and eight months' imprisonment, with a non-parole period of seven years and three months.

Orders

Orders of the court

David Wran is:

(a) On count 1, convicted of aggravated indecent assault of a child under 16 years.

(b) On count 2, convicted of attempting to have sexual intercourse with a child aged between 10 to 14 years in circumstances of aggravation, namely that the victim was under his authority.

(c) On count 3, convicted of attempting to have sexual intercourse with a child aged between 10 to 14 years in circumstances of aggravation, namely that the victim was under his authority.

(d) On count 4, convicted of inciting a child aged between 10 and 16 to carry out a sexual act towards him, in circumstances of aggravation, namely that the child was under his authority.

2. I impose an aggregate sentence of nine years and eight months’ imprisonment, with a non-parole period of seven years and three months, each to date from 27 July 2019. The period of imprisonment shall expire on 26 March 2029, and the offender shall be eligible for parole on 26 October 2026.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Wran (a pseudonym) (No 2) [2021] NSWDC 808

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 19 of 19 shown

R v Wran (a pseudonym)
[2021] NSWDC 185

…R 268 R v LS; R v MH [2020] NSWCCA 148 R v MAK, R v MSK [2006] NSWCCA 381 R v PGM (2008) 187 A Crim R 152 R v Wran (a pseudonym) [2021] NSWDC 185 Wakeling v R [2016] NSWCCA 33 Category: Sentence Parties: Regina David Wran (a pseudonym) (Offender) Representation: Counsel: Ms S Walsh (Offender) Solicitors: Office of…
Hartley v The Queen
[2020] NSWCCA 330 Para 49

…d provided, a matter that has been remarked upon by several decisions of the Court of Criminal Appeal. [19] 19. Corby at [69]-[71], Hartley v R [2020] NSWCCA 330 at [36], Jurd v R [2020] NSWCCA 91 at [231], Hordern v R [2019] NSWCCA 138 at [2], cf BT v R at [41].…
R v LS; R v MH
[2020] NSWCCA 148 Para 63

…a significant quantity of disseminate child abuse offences limits the utility of the sentencing decision in that case as guidance in this case. 37. [2020] NSWCCA 148.…
Ibbotson (a pseudonym) v R
[2020] NSWCCA 92 Para 64

…s and six months' imprisonment was imposed after a 10% discount for a plea. That was an offence more serious than the s 61M offence in this case. 38. [2020] NSWCCA 92.…
Jurd v The Queen
[2020] NSWCCA 91 Para 49

…emarked upon by several decisions of the Court of Criminal Appeal. [19] 19. Corby at [69]-[71], Hartley v R [2020] NSWCCA 330 at [36], Jurd v R [2020] NSWCCA 91 at [231], Hordern v R [2019] NSWCCA 138 at [2], cf BT v R at [41].…
Bell v R
[2019] NSWCCA 251 Para 57

…hout the discount. The offences were regarded as slightly below the middle of the range and in the middle of the range respectively. [30] 26. [2019] NSWCCA 251. 27. At [65]. 28. At [61]. 29. At [73]. 30. At [17], [47].…
Hordern v R
[2019] NSWCCA 138 Para 49

…e Court of Criminal Appeal. [19] 19. Corby at [69]-[71], Hartley v R [2020] NSWCCA 330 at [36], Jurd v R [2020] NSWCCA 91 at [231], Hordern v R [2019] NSWCCA 138 at [2], cf BT v R at [41].…
Dawkins v R
[2018] NSWCCA 278 Para 25

…bysitter, [16] and that also reflects on the seriousness of the offence. 15. See R v BTW (2000) 112 A Crim R 1 at [20]-[21]. 16. See e.g. Dawkins v R [2018] NSWCCA 278 at [40].…
Wakeling v R
[2016] NSWCCA 33 Para 27

…6. Crimes (Sentencing Procedure) Act, s 21A(2). 7. R v KNL (2005) 154 A Crim R 268 at [42]. 8. Corby at [77]. 9. R v KNL at [42]. 10. Cf Wakeling v R [2016] NSWCCA 33 at [47].…
Gregory John Walsh v The Queen
[2015] NSWCCA 83 Para 37

…ictim sufficient to hurt indicates that the difference between the attempt and the completion of sexual intercourse should not be overemphasised. 13. [2015] NSWCCA 83 at [14]. 14. See e.g. Walsh ibid at [25].…
Franklin v R
[2013] NSWCCA 122 Para 69

…ciple is relevant to the assessment of the appropriate aggregate sentence. 44. Carlton v The Queen (2008) 189 A Crim R 332 at [122]. 45. Franklin v R [2013] NSWCCA 122 at [44].…
BT v R
[2010] NSWCCA 267 Para 25

…physical contact was low. [4] The victim rebuffed her stepfather and left the room unrestrained. He did direct her not to tell her mother. 3. BT v R [2010] NSWCCA 267 at [24]. 4. R v PGM (2008) 187 A Crim R 152 at [31], Corby v R [2010] NSWCCA 146 at [72].…
Corby v R
[2010] NSWCCA 146 Para 25

…om unrestrained. He did direct her not to tell her mother. 3. BT v R [2010] NSWCCA 267 at [24]. 4. R v PGM (2008) 187 A Crim R 152 at [31], Corby v R [2010] NSWCCA 146 at [72].…
Carlton v The Queen
[2008] NSWCCA 244 Para 69

…so as to reflect the total criminality of the offences. [45] This principle is relevant to the assessment of the appropriate aggregate sentence. 44. Carlton v The Queen (2008) 189 A Crim R 332 at [122]. 45. Franklin v R [2013] NSWCCA 122 at [44].…
R v MAK
[2006] NSWCCA 381 Para 68

…multiple offences, but a reminder of the necessity to consider the overall sentence. 41. Postiglione v The Queen (1997) HCA 26. 42. R v MAK, R v MSK [2006] NSWCCA 381 at [16]. 43. MSK at [17]-[18].…
R v Cage
[2006] NSWCCA 304 Para 30

…offences did not involve a child mitigate these offences. 11. Corby at [94], R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 45-48 [76]-[90], R v Cage [2006] NSWCCA 304 at [31].…
DAC v R
[2006] NSWCCA 265 Para 51

…rimes (Sentencing Procedure) Act containing standard non‑parole periods has any direct application for the s 344A offences in counts 2 and 3. 20. [2006] NSWCCA 265 at [10].…
R v Gent
[2005] NSWCCA 370 Para 30

…s of his past offences, does the circumstance that his previous offences did not involve a child mitigate these offences. 11. Corby at [94], R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 45-48 [76]-[90], R v Cage [2006] NSWCCA 304 at [31].…
Postiglione v the Queen
[1997] HCA 26 Para 68

…be considered. [43] This is not to provide any discount for multiple offences, but a reminder of the necessity to consider the overall sentence. 41. Postiglione v The Queen (1997) HCA 26. 42. R v MAK, R v MSK [2006] NSWCCA 381 at [16]. 43. MSK at [17]-[18].…

Legislation cited in this decision · 4

Crimes (High Risk Offenders) Act 2006 (NSW)
5I 2 mentions (from Para 34)
Crimes (Sentencing Procedure) Act 1999 (NSW)
3A 2 mentions (from Para 26)
Crimes Act 1900 (ACT)
61HC 2 mentions (from Para 1)
Crimes (Sentencing Procedure) Amendment Act 2007 (NSW)
1 mention

Medium Neutral Citation:	R v Wran (a pseudonym) (No 2) [2021] NSWDC 808
Hearing dates:	29 July 2021
Date of orders:	13 August 2021
Decision date:	13 August 2021
Jurisdiction:	Criminal
Before:	P Taylor SC DCJ
Decision:	David Wran is: (a) On count 1, convicted of aggravated indecent assault of a child under 16 years. (b) On count 2, convicted of attempting to have sexual intercourse with a child aged between 10 to 14 years in circumstances of aggravation, namely that the victim was under his authority. (c) On count 3, convicted of attempting to have sexual intercourse with a child aged between 10 to 14 years in circumstances of aggravation, namely that the victim was under his authority. (d) On count 4, convicted of inciting a child aged between 10 and 16 to carry out a sexual act towards him, in circumstances of aggravation, namely that the child was under his authority. 2. I impose an aggregate sentence of nine years and eight months’ imprisonment, with a non-parole period of seven years and three months, each to date from 27 July 2019. The period of imprisonment shall expire on 26 March 2029, and the offender shall be eligible for parole on 26 October 2026.
Catchwords:	SENTENCING — Aggravating factors — Abuse of position of trust or authority in relation to the victim CRIME — Child sex offences — Attempted sexual intercourse with child >10 <16 — Indecent Assault – Incitement - Circumstances of aggravation CRIME — Sexual offences — Indecent assault — Circumstances of aggravation
Legislation Cited:	CrimesAct1900, s 61HC, s 61M, s 66C, s 66DE, s 344A, s 578A Crimes (High Risk Offenders) Act 2006, s 5I, s 9 Crimes (Sentencing Procedure) Act 1999, s 3A, s 5, s 21A, s 24A, s 53A, s 54A, s 54B, s 54D Crimes (Sentencing Procedure)Amendment Act 2007, Sch 1, cl 10
Cases Cited:	BellvR [2019] NSWCCA 251 BT v R [2010] NSWCCA 267 Carlton v The Queen (2008) 189 A Crim R 332 Corby v R [2010] NSWCCA 146 DAC v R [2006] NSWCCA 265 Dawkins v R [2018] NSWCCA 278 Decision restricted [2017] NSWCCA 60 Franklin v R [2013] NSWCCA 122 Gregory John Walsh v R [2015] NSWCCA 83 Hartley v R [2020] NSWCCA 330 Hordern v R [2019] NSWCCA 138 Ibbotson (a pseudonym) v R [2020] NSWCCA 92 Jurd v R [2020] NSWCCA 91 Postiglione v The Queen (1997) HCA 26 R v BJW (2000) 112 A Crim R 1 R v BTW (2000) 112 A Crim R 1 R v Cage [2006] NSWCCA 304 R v Fisher (1989) 40 A Crim R 442 R v Gent [2005] NSWCCA 370; 162 A Crim R 29 R v KNL (2005) 154 A Crim R 268 R v LS; R v MH [2020] NSWCCA 148 R v MAK, R v MSK [2006] NSWCCA 381 R v PGM (2008) 187 A Crim R 152 R v…